THE L'A.MERIQUE.

835

. THE· L'AMERIQUE.

COMPAGNIE GEN:EJRALE TRANSATLAl'tTIQUE

HOGUET

et al.

(Diatrict

Court,

8. D. New York. JulylO,1888.)

1.. SHIPPING-GENERAL

AVERAGE-tlTRANDED VESSEL-CARGO SUBSEQUENT EXPENSE-FREIGHT.

When a sttanded vessel cannot be got off except at great expense and de· lay, and the cargo is unloaded by the master for the benefit of the ship and cargo; but without any intention of reloading' it in the same vessel, and it is forwarded by other means to its destination, and delivllred to the consignees at comparatively small cost, the common interest. as. well as the common risk, between ship and cargo, ceases with the unloading; only the expense of unloading, not the subsequent expenditure in floating the vessel, is a general average charge against the cargo; and the cost of subsequent transportation is particular average against the carRO alone, and the ship is entitled, to her whole freight. . . An average bond, executed in New York, provided for an adjustment "in with the established usage and laws of this state." There being no statutes of this state, or practice under them, different from the general maritime law of this country, held, that this ytovision bound the parties to an adjustment in accordance with the genera maritime law, so far as that determines the general rules of apportionment; and to the practice of adjusters, as respects those details which the law lcaves to local custom; and that under such bond a cargo owner inquire whether the rule of apportion· ment adopted was in accordance WIth our maritime law.

2.

In Admiralty. The above libel was filed by the owners of the French steam-ship L'Amerique to recover $1,911.90, claimed as a general average charge assessed upon 16 bales of raw silk, part of her cargo consigned to the respondents. The steam-ship, being of about 3,000 tons register, and bound from Havre to New York, when about three miles south of Sandy Hook, and in charge of a pilot, on January 7, 1877, stranded on the beach at Seabright, on the Jersey coast, in thick weather, and in an easterly gale. On the following day Mr. De Bebian, the libelant's agent in New York, visited the steamer, and in conjunction with some of the .underwriters employed the Merritt Coast Wrecking Company to unload and deliver the cargo,and get the ship off the beach. The wrecking company immediately commenced unloading, with the assistance of the master and crew. A part was landed on the beach; a part in lighters and schooners. That landed on the beach was carried by the railroad near at hand to Sandy Hook, and thence by steamer some 20 miles to New York, and delivered to the That loaded upon lighters was mostly put 1m board schooners and carried up to the port, and likewise delivered to the owners. All· the cargo, except a very small amount that remained on board the ship, was thus unloaded and delivered by the 1st of February; the respondents' goods were all delivered by January 23d. Prior to the delivery of the cargo, the respondents" and the

836

FEDERAL REPORTER.

other owners to whom cargo was delivered executed a bond, dated January 7, 1877, which recited the, stranding, the need of assistance, that certain losses and expenses "had been incurred, and that other expenses thereafter may' be incurred, which, according to the usage of this port constitute a general averagej" and provided that the subscribers and owners of the cargo "would pay their share of any loss, damages, or expenses that should be made to appear to be due from them," provided the same should be "apportioned by Mr. Paulison, average adjuster, in accordance with the established usage and laws of this state in similar cases." The cargo was of a miscellaneous character. About $115,000 in specie 'Yasfirstlanded on the beach on the 9th of January. Upon the following duy pictures to about the same value were landed on the beach. The rest of the cargo was unloaded from time to time, as the weather would permit. Some hides, millstones, and rattans, to the amount of from 10 to 20 tons, remained on board, which it was not which were subsequently brought thought necessary to into port with the ship. After the landing of the cargo, continuous efforts were made to get the vessel off, until the 10th of April, when she was floated. Several times she was carried by gales well up on the beachj but never completelyout of the water. Steam was kept up constill1tly in her enl!;ines, to aid in getting her off. When she floated on April 10th, she came into port by her own steam-power; but with the help oftugsfor steering purposes, as she had lost her rudder. The entire expense charged to general average was $135,099.03, of which $110,000 was for the services ofthe Coast Wrecking Company. The reniainder was for damage to the cargo in landing through the surf; for broken packages; allowanc.e for fuel consumed by the steamer in keeping her pumps going.; helping to discharge; and provisions for the men employed, etc. The apportionment was as follows: Vessel, value $258,370, charged $4:1,021; freight, value $2,250, charged $357j cargo, value $590,295, charged $93,720. Total value, ship, freight, and cargo, $850,915. General average" !J.bout 16 per cent. Total, $135,099. The respondents, having insured in the Great Western Insurance Company, refused 'to pay the amount assessed on their goods, because. that company objected to the mode and validity of the apportionment, and the defense ,is virtually by the insurance company. Cou,gertBro8., (P. R. Coudert and Edward K. Jones, .of counsel,) for libelant. EvartB,;(Jhoate« Beaman, (Treadwell Oleveland, of counsel,) for respondents.
BROWN, J. 1. On behalf of the libelants it is claimed that, irrespective of any question al'! to the legal correctness of the,mode of apportionment, the respondents are liable under the terms of the bondj because, as it is said, the-$pportionment was made by"Mr. Paulison, in accordance with the established usage and laws of this state in similar cases," as the bond required. No doubt, where the IJ1nguage of a cOJ;ltractstipulates for per-

THE L'AMERIQUE.

837

forma.nce according to a specific custom, that custom, if valid, will control, though the general law be different; for the express contract makes the law in such a case. Simonds Y. White, 2 Barn. & C. 811; Stewart v. Steam-Ship OJ,} .L. R. 8 Q. B. 88, 362. In the last case cited the bill C)f lading provided that any "average should be adjusted according to British custom; " and it was admitted to be the practice of British average adjusters not to treat the loss there in question as a general average loss; and .the stipulation was therefore held controlling, although the law was other"lise. Wire OJ. v. Savill, 8 Q. B. Div. 653, 660; Schmidt v. Steam-Ship G>.,45 Law J. Q. B. 646. But the terms of this bond, providing for an adjustment "in accordance with the established usage and laws of this state," cannot mean the adoption of any mere practice of average adjusters that is contrary to law; not, at least, unless it is shown that there are some statutes of this state, and a practice under them, different from the general marine law of this country. Nothing of this kind appears in evidence. There are no such statutes, and no such usage is proved. The actual intent of the adjuster was, as he testified, to make the adjustment "in accordance with the practice and the law, as he understood it." The limitation of the bond is, further, to such practice and laws "in similar cases." No cases precisely similar are proved, nor any "established usage," independent of the legal right. As there are no statutes of this state on the subject of apportioning general average, the use of the term "laws," in this bond, cannot be restricted to state statutes; for that would leave the word no signification at all. The intent of the bond is, as it seems to me, to bind the parties to the law and practice prevailing here,-to the law, so far as that determines the general rules of the ap;portionment; to the practice, as respects those details which the law leave to local custom. The bond was evidently not intended to bind consignees to any prinCiple of apportionment that the law will not uphold; and it does not have that effect. It is, therefore, open to the respondents to inquire whether the rule of apportionment adopted is in accordance with our maritime law. 2. The respondents contend that the charges incurred for getting the .vessel off the beach after the cargo was landed and delivered to the consignees were not, in this case, general average charges; and that the principle of the apportionment is to that extent wrong. The amount of these charges is large. If they are erroneonsly embraced in the assessment, the error is material, and no decree can be entered, except upon a proper adjustment of the general or particular average charges against the respondents' part of the cargo. The principle on which general averJl,ge is founded is, that where an imminent peril common to all has been averted by some sacrifice or extraordinary expense, voluntarily made or incurred by a part for the safety of all, the loss shall be made good by the contribution of all. The simplest case is that of jettison, which contains the germ and the principle of the whole doctrine. If a vessel, therefore, is stranqed through a peril of the seas, and her situation is such.that the only way to the destruction of the cargo, as well

838

FEDERAL REPORTER.

asofthe,sliipiis to get the 'shipafioat,the expenses of getting her off ought to be a charge against all, because the sacrifice or expense is necessarily incurred for the safety of all. The ship ought not in such a case to pay the whole charge, because her contract of transportation excepts "perils of the seas," and therefore excepts extraordinary expenses consequent upon such perils, SOt far as they are incurred for the common 'safety. But the strandinK, on the other hand, may possibly involve no danger to the goods, as by strandinK on a river shore, or on a beach, where, though the ship might be broken, no peril waS likely to happen to the cargo. The Alcona, 9 Fed. Rep. 172. Or, again, the stranding might be so disastrous as obviously to necessitate the abandonment of the ship. In the former case there would be no common peril, and in the latter no remaining community of interest; in neither, therefore, would there be any common average charge. In8urance 00. v. A8hby, 13 Pet. 330, 340; WiUiams v. Insurance Oo'j 3 Sum. 510. See L'Admiral OaseJJj and Ville d'Ageer, Gourlie'sAverage, 413, 414, note. In the adjudged cases the facts are usually much more complicated. There is no disagreement as to the general principles; the difficulty is in their application to the particular circumstances of each case. The most important circumstances in the present case are the following: (1) The stranding was by a peril of the seas, and the position of the vessel most unfavorable for hauling her off. It was evident from the first that the task must be long and expensive, and the result doubtful. (2) It was within a few miles of the port of destination; and' the cargo could be discharged and delivered at once, with comparatively little difficulty or expense. (3) The discharge of the cargo was begun at once, before any efforts were made to haul the ship off. The discharKe was not made with any view to reloading, but for the purpose of immediate forwarding and delivery to the consignees at New York; in part, also, for the purpose of lightening the ship, and as a nectssary prdiminary to the work of hauling her off. (4) Though the cargo was not in immediate peril, yet, considering the exposure of the stranded ship to easterly gales in the winter season, the unloadinK was necessary as a precautionary measure for the safety of the cargo, independently of the purpose of immediate delivery. (5) The cargo, from the moment of the ship's strandiug, had no actual interest in hauling the 8hip off, nor in her further prosecution of the voyage. The great expense and delay plainly necessary to float the ship made immediate separation from the ship to the interest of. the cargo. Its only common interest with the ship was in immediate unloading, and safe delivery to the consignees. The freight was thereby earned. (6) The work and the expense of unloading were entirely distinguishable and separable from the work of getting the ship mi'; though the former was a necessary preliminary to the latter. (7) The expenditures in getting the ship off were chiefly, if not wholly, incurred after the cargo had ceased to beat risk, and after the cargo was out of the master's control, through delivery to its owners. (8) The effect of the general average is to impose upon the cargo, above the whole